Answer to Debt Collection Lawsuit (with FDCPA Affirmative Defenses) - Hawaii

IN THE [____________] COURT OF THE [____________] CIRCUIT, STATE OF HAWAI'I

Civil No. [____________]

DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES

Filed Pursuant to Haw. R. Civ. P. 8 and 12 (Circuit Court) / Dist. Ct. R. Civ. P. 12 (District Court)

COMES NOW the Defendant, [____________] ("Defendant"), appearing [☐ pro se / ☐ by and through undersigned counsel], and for Defendant's Answer to the Complaint filed by Plaintiff, [____________] ("Plaintiff"), states as follows:

I. PRELIMINARY STATEMENT AND RESERVATION OF RIGHTS

1. Defendant timely files this Answer within the period prescribed by the applicable rule — twenty (20) days after service in Circuit Court (Haw. R. Civ. P. 12(a)(1)), or on the return day stated in the summons in District Court (Dist. Ct. R. Civ. P. 12(a)). Defendant reserves all rights, defenses, and objections available under the applicable Rules of Civil Procedure, including those enumerated in Rule 12(b).

2. By filing this Answer, Defendant does not admit that Plaintiff has stated a claim upon which relief may be granted, that Plaintiff owns or has standing to sue upon the alleged debt, that this Court has personal jurisdiction over Defendant, or that venue is proper. Defendant expressly preserves the right to raise any applicable motion, defense, or objection.

3. Defendant does not have possession of the underlying account documents and demands that Plaintiff produce strict legal proof of each element of its claim, including the existence, ownership, amount, and enforceability of the alleged debt.

II. RESPONSES TO THE NUMBERED ALLEGATIONS

4. Paragraph 1 of the Complaint: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant is without knowledge or information sufficient to form a belief as to the truth of this allegation and therefore denies it.

5. Paragraph 2 of the Complaint: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant is without knowledge or information sufficient to form a belief as to the truth of this allegation and therefore denies it.

6. Paragraph 3 of the Complaint: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant is without knowledge or information sufficient to form a belief as to the truth of this allegation and therefore denies it.

7. Paragraph 4 of the Complaint: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant is without knowledge or information sufficient to form a belief as to the truth of this allegation and therefore denies it.

8. Paragraph 5 of the Complaint: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant is without knowledge or information sufficient to form a belief as to the truth of this allegation and therefore denies it.

9. Paragraph [____] of the Complaint: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant is without knowledge or information sufficient to form a belief as to the truth of this allegation and therefore denies it.

10. Pursuant to Haw. R. Civ. P. 8(b), Defendant denies each and every allegation of the Complaint not expressly admitted above and demands strict proof thereof.

III. AFFIRMATIVE DEFENSES

Without assuming any burden of proof not imposed on Defendant by law, and expressly reserving the right to amend or supplement under Haw. R. Civ. P. 15 as discovery proceeds, Defendant asserts the following affirmative defenses under Haw. R. Civ. P. 8(c). Defendant should select only those defenses supported by the facts; pleading clearly inapplicable defenses may be subject to Rule 11.

☐ First Defense — Statute of Limitations. Plaintiff's claim is barred, in whole or in part, by the applicable statute of limitations. Under Hawaii law, an action for the recovery of any debt founded upon a contract, obligation, or liability must be commenced within six (6) years after the cause of action accrued. Haw. Rev. Stat. § 657-1(1). (An action for breach of a contract for the sale of goods is governed by the four-year UCC period under Haw. Rev. Stat. § 490:2-725.) The alleged debt accrued more than the limitations period before this action was filed, and the claim is time-barred.

☐ Second Defense — Lack of Standing; Failure to Prove Ownership and Chain of Assignment. Plaintiff is not the original creditor and has failed to plead or prove that it owns the alleged debt. Plaintiff must establish a complete, unbroken chain of assignment from the original creditor to Plaintiff, including each bill of sale and assignment document specifically identifying Defendant's account. Absent such proof, Plaintiff is not the real party in interest under Haw. R. Civ. P. 17(a) and lacks standing to bring or maintain this action.

☐ Third Defense — Failure to State a Claim. The Complaint fails to state a claim upon which relief can be granted and is subject to dismissal under Haw. R. Civ. P. 12(b)(6).

☐ Fourth Defense — FDCPA Violations; Failure to Validate. Plaintiff and/or its predecessors are "debt collectors" subject to the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., and failed to provide the validation notice and verification required by 15 U.S.C. § 1692g and/or engaged in false, deceptive, abusive, or unfair collection practices in violation of 15 U.S.C. §§ 1692d, 1692e, and 1692f, including filing or threatening suit on a time-barred or unverified debt.

☐ Fifth Defense — Plaintiff Not Registered / Authorized to Collect in Hawaii. Hawaii requires a person engaged in collecting debts owed to another to register as a collection agency under Haw. Rev. Stat. chapter 443B (annual registration; surety bond under § 443B-5). To the extent Plaintiff was required to register and failed to do so, Plaintiff is barred from collecting in this State. Significantly, an out-of-state collection agency operating under the exempt out-of-state designation of Haw. Rev. Stat. § 443B-3.5 expressly "shall not . . . [b]ring or maintain any action involving the collection of debts of its clients in any court of the State" (§ 443B-3.5(f)(5)). Plaintiff has failed to plead or prove that it is properly registered and authorized to maintain this action. [verify Plaintiff's registration status and whether it operates under an exempt out-of-state designation before relying on this defense.]

☐ Sixth Defense — Payment, Accord and Satisfaction, Discharge. The alleged debt has been paid, satisfied, settled, released, discharged (including by discharge in bankruptcy), or otherwise extinguished, in whole or in part.

☐ Seventh Defense — No Account Stated; No Agreement to the Balance. Defendant never received, reviewed, or assented to the balance alleged, and never agreed that the stated sum was a true and correct statement of the account. The elements of an account stated are not satisfied.

☐ Eighth Defense — Statute of Frauds. To the extent Plaintiff relies on an agreement required to be in writing, the claim is barred by the Statute of Frauds, Haw. Rev. Stat. § 656-1.

☐ Ninth Defense — Erroneous or Unauthorized Amount; Unauthorized Fees; Usury. The amount claimed is incorrect, inflated, or includes interest, fees, or charges that were not authorized by any agreement, are unconscionable, or are usurious (see Haw. Rev. Stat. § 478-1 et seq.). Plaintiff must itemize and substantiate every component of the amount demanded.

☐ Tenth Defense — Improper Service / Lack of Personal Jurisdiction. Service of process was insufficient or defective, and/or this Court lacks personal jurisdiction over Defendant. Haw. R. Civ. P. 12(b)(2), (4), (5).

☐ Eleventh Defense — Failure to Mitigate. Plaintiff and/or its predecessors failed to take reasonable steps to mitigate the damages alleged.

☐ Twelfth Defense — Hearsay; Lack of Foundation for Account Records. Plaintiff's account records, affidavits, and computer printouts are inadmissible hearsay and lack the foundation required for the business-records exception (Haw. R. Evid. 803(b)(6)). Plaintiff cannot establish the records through a witness with personal knowledge of the original creditor's record-keeping practices, and "robo-signed" affidavits are insufficient.

☐ Thirteenth Defense — Reservation of Right to Amend. Defendant reserves the right to assert additional affirmative defenses, counterclaims, cross-claims, or third-party claims that become known through investigation or discovery, consistent with Haw. R. Civ. P. 15.

IV. DEMAND FOR DOCUMENTATION AND STRICT PROOF

11. Defendant demands that, before judgment, Plaintiff produce admissible evidence of each of the following:

a. The signed account agreement, cardholder agreement, or contract under which the alleged debt arose, together with all amendments and change-of-terms notices;

b. A complete set of monthly account statements from inception through charge-off, evidencing the transactions, charges, payments, interest, and fees that make up the balance claimed;

c. An itemization of the principal, interest, fees, and other charges comprising the amount demanded, with the contractual or statutory authority for each charge;

d. The complete chain of title to the alleged debt — every bill of sale, assignment, and account-transfer document from the original creditor through each intermediate owner to Plaintiff — together with the specific account-level data showing Defendant's account was among those transferred; and

e. Proof that Plaintiff is the present owner and real party in interest entitled to enforce the alleged debt, and that Plaintiff is registered (or is not otherwise barred from suit) under Haw. Rev. Stat. chapter 443B.

V. NOTICE OF POTENTIAL FDCPA COUNTERCLAIM

12. Defendant gives notice that the facts of this matter may give rise to a counterclaim against Plaintiff and/or its predecessors under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., including but not limited to claims for actual damages, court-allowed additional damages up to $1,000 in an individual action and, upon a successful action, costs and a reasonable attorney's fee under 15 U.S.C. § 1692k, for conduct such as filing suit on a time-barred or unverified debt, failing to provide § 1692g validation, or using false, deceptive, or unfair means to collect.

☐ Defendant asserts no counterclaim at this time and reserves all rights.
☐ Defendant asserts the FDCPA counterclaim set forth in the attached/following pleading.

VI. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that this Court:

A. Dismiss Plaintiff's Complaint with prejudice and order that Plaintiff take nothing;

B. Enter judgment in favor of Defendant on all claims;

C. Award Defendant the costs of this action and, to the extent permitted by law or contract, reasonable attorney's fees;

D. Grant Defendant any counterclaim relief asserted herein; and

E. Grant such other and further relief as the Court deems just and proper.

VII. JURY DEMAND

☐ Yes — Defendant demands trial by jury on all issues so triable, pursuant to Haw. R. Civ. P. 38 and Haw. Const. Art. I, § 13.

☐ No — Defendant does not demand a jury trial at this time.

VIII. SIGNATURE

Respectfully submitted this [____] day of [____________], 20[____].

/s/ [____________________________________]
[____________________________________]
☐ Defendant, pro se ☐ Attorney for Defendant
Hawaii Bar No. (if attorney): [____________]
[Street Address]
[City], Hawaii [____]
Telephone: ([____]) [____]-[________]
Email: [____________________________________]

IX. CERTIFICATE OF SERVICE

I hereby certify that on the [____] day of [____________], 20[____], I served a true and correct copy of the foregoing Defendant's Answer and Affirmative Defenses upon Plaintiff's counsel of record (or upon Plaintiff, if unrepresented) in accordance with Haw. R. Civ. P. 5, by the following method:

☐ Hawaii Judiciary Electronic Filing System (JEFS / JIMS) (notice to all registered users)
☐ U.S. First-Class Mail, postage prepaid
☐ Certified Mail, Return Receipt Requested
☐ Hand Delivery
☐ Email (by agreement / where permitted)

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]

HAWAII PRACTICE NOTES

• Answer deadline: Circuit Court — 20 days after service of the summons and complaint (Haw. R. Civ. P. 12(a)(1)). District Court (most debt cases) — appear or answer on the RETURN DAY in the summons, generally the second Monday following service (Dist. Ct. R. Civ. P. 12(a)). Calendar the date on the summons; do not assume 20 days in District Court.
• Courts: District Court has civil jurisdiction over most money claims up to $40,000 (Haw. Rev. Stat. § 604-5); Small Claims Division handles claims up to $5,000 (no written answer; appear at hearing). Circuit Court is the court of general jurisdiction. Verify current thresholds and the court named in the summons.
• Statute of limitations on debt: 6 years for debt founded on a contract, obligation, or liability (Haw. Rev. Stat. § 657-1(1)); 4 years for breach of a UCC contract for the sale of goods (§ 490:2-725). Hawaii does not use a separate shorter "open account" period.
• Licensing: Collection agencies must register annually under Haw. Rev. Stat. chapter 443B and maintain a surety bond (§ 443B-5; $25,000, plus $15,000 per additional office). A collection agency operating under the exempt out-of-state designation (§ 443B-3.5) is expressly prohibited from bringing or maintaining any debt-collection action in any Hawaii court (§ 443B-3.5(f)(5)) — a potentially dispositive defense if Plaintiff is an out-of-state agency relying on that designation. Verify Plaintiff's status.
• FDCPA / UDAP interplay: Assert FDCPA claims under federal law (15 U.S.C. § 1692 et seq.). Hawaii's UDAP statute (ch. 480) and collection-practices statute (ch. 480D) may provide parallel state remedies; evaluate with counsel.
• Compulsory counterclaim: An FDCPA claim arising from the collection of this debt may be compulsory under Haw. R. Civ. P. 13(a).

Sources and References

• Hawaii Rules of Civil Procedure (Rule 12 answer timing): https://www.courts.state.hi.us/wp-content/uploads/2024/09/hrcp_ada.pdf
• Haw. Rev. Stat. § 657-1 (6-year limitation — contracts/debt): https://law.justia.com/codes/hawaii/title-36/chapter-657/section-657-1/
• Haw. Rev. Stat. § 604-5 (District Court civil jurisdiction): https://www.capitol.hawaii.gov/hrscurrent/Vol14_Ch0701-0853/HRS0604/HRS_0604-0005.htm
• Haw. Rev. Stat. § 443B-3.5 (exempt out-of-state collection agency; no court actions): https://law.justia.com/codes/hawaii/title-25/chapter-443b/section-443b-3-5/
• Haw. Rev. Stat. ch. 443B (Collection Agencies): https://cca.hawaii.gov/pvl/files/2013/08/hrs_pvl_443b.pdf
• Hawaii DCCA — Collection Agencies licensing: https://cca.hawaii.gov/pvl/programs/collection/
• Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.: https://www.ftc.gov/legal-library/browse/rules/fair-debt-collection-practices-act-text
• CFPB — debt that is several years old / time-barred debt: https://www.consumerfinance.gov/ask-cfpb/can-debt-collectors-collect-a-debt-thats-several-years-old-en-1423/
• Hawaii Judiciary eFiling (JEFS): https://www.courts.state.hi.us/legal_references/efiling